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USCIS Expands Worksite Inspection Program to L-1 Employers

January 30, 2014

Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office

USCIS officers have begun to make unannounced workplace visits to L-1 employers under the agency’s Fraud Detection and National Security (FDNS) site inspection program. L-1 site visits are not yet widespread, but are expected to become more frequent in the weeks and months to come.

Initial indications are that the agency is focusing on extensions of individual L-1 petitions originally filed at USCIS Service Centers, with special scrutiny of extensions of “new office” L-1 cases. It is not yet known whether FDNS officers will inspect the worksites of L-1 employees in their initial period of employment under a Service Center petition, a blanket L-1 application originally adjudicated by a U.S. consulate or a Canadian L-1 petition approved at the border.

Site inspectors are expected to review L-1 job duties to determine whether they are consistent with the foreign beneficiary’s classification as an L-1A executive or manager or an L-1B specialized knowledge worker. Early reports indicate that inspectors are also reviewing the salaries of L-1 employees relative to their job type and experience level.

The expansion of the site visit program comes in the wake of an August 2013 report of the DHS Inspector General, which urged USCIS to more closely scrutinize L-1 petitions. Until now, the FDNS program had focused largely on inspection of H-1B petitions.

What Happens During an FDNS Site Visit

FDNS site visits are used to verify the existence of the employer, the validity of information in the employer’s immigration petitions and whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

Site inspectors typically visit the workplace unannounced, though in some cases may contact the employer in advance to arrange an appointment. Inspectors may also communicate with the employer by phone or email. In Fragomen’s experience, officers typically spend anywhere from 30 to 90 minutes at the worksite, though longer visits are possible.

The officer usually asks to speak to an employer representative, such as a human resources manager, as well as the foreign beneficiary of the petition in question and his or her direct supervisor or manager. In some cases, the officer will ask to tour the employer’s premises and the foreign national’s work area, and may want to photograph the premises. The employer may be asked to provide documents like payroll records or paystubs for the foreign national.

After the inspection, the FDNS officer may contact the employer by phone or email to request additional information. If there appears to be any discrepancy between the information provided in an immigration petition and the circumstances at the worksite, USCIS may notify the employer of its intent to revoke the petition and provide the employer with an opportunity to explain any perceived inconsistencies.

What the Site Visit Expansion Means for Employers

L-1 employers must be prepared for the possibility of unannounced FDNS site inspections and must take steps to train human resources and administrative staff to respond to reasonable government inquiries and requests.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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